European private law at the crossroads: the proposed European sales law

This paper discusses arguments in favour and against the legal basis of the Proposal for a Regulation of the European Parliament (EP) and the Council on a Common European Sales Law (CESL), published as COM(2011) 635 final of 11 October 2011. It considers the international private law as well as some individual substantive rules of both the Regulation and the actual Sales Law. Suggestions are made on how to adjust and complement this instrument in order to achieve what the European Union (EU) legislator is setting out to do and indeed what the legal and trading community, including consumers, need. Central problems with the proposal are found to be the intended exclusive role of CESL in relation to existing transnational rules of international commercial contracts and the weakly identified reasons for there being separate regimes for consumers and merchants in the first place. Both consumer and commercial contracts have specific characteristics and requirements that need legislative attention within the EU and beyond but that have not been carved out sufficiently by legal doctrine yet. Further research into the contents of typical consumer and merchant contracts, both formal and substantive in nature, is therefore needed. A consolidated and possibly separate and mandatory consumer law for the Common Market could then be tailored in a more integrated and convincing way